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Court of AppealAllowedCivil Application No. NAI. 10 of 2006· [2006] KECA 298 (KLR)

Richard Akwesera Onditi v Kenya Commercial Finance Co. Ltd

Court of Appeal
31 March 2006
ROR.S.C. OmoloPhilip Kiptoo TunoiP.K. TunoiEOE.O. O'Kubasu
240 words in judgment
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The bottom line

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Kenya's Court of Appeal temporarily halted enforcement of a High Court judgment while the debtor seeks permission to appeal late, but preserved the lender's power to sell charged property.

What this practically means

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Executive summary

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This is a brief interlocutory ruling of the Court of Appeal at Kisumu (Omolo, Tunoi and O'Kubasu, JJ.A.) on the applicant's application for a temporary stay of execution of a judgment and decree of the High Court at Kakamega (Tanui J.) dated 18 September 2001 in H.C.C.C. No. 65 of 1993, pending an intended appeal. The applicant sought a temporary stay; the application was brought in anticipation of an application for leave to file an appeal out of time. After the applicant concluded his submissions, counsel for the respondent, Mr. Shivaji, informed the Court that he was prepared to concede the application and undertook not to prematurely execute the decree. The Court, having considered the submissions of both parties, held that in the interest of justice the application should be granted and issued an order of stay of execution pending determination of the application for leave to file an appeal out of time. The Court expressly recorded that it was not being asked to prevent the respondent from exercising its statutory power of sale, thereby preserving that statutory remedy. The ruling ends with a reference to 'Costs in the intended appeal' without further elaboration. The decision is a short, consent-influenced interlocutory order; it establishes no significant precedent beyond confirming that a temporary stay may issue in the interests of justice pending determination of a leave application, and it does not disturb the underlying High Court judgment.

Key legal issues

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01

Whether stay of execution should issue pending the intended appeal

Holding

Stay granted in the interest of justice, expressly without restraining the respondent's statutory power of sale.

Reasoning

The court considered submissions of both parties. Counsel for the respondent conceded the application and undertook not to prematurely execute the decree. Taking that concession into account, and noting the stay did not prevent exercise of the statutory power of sale, the court found it in the interests of justice to grant a temporary stay pending determination of the leave application.

p. 1

Legal principles established

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  • An appellate court may grant a temporary stay of execution pending determination of an application for leave to appeal out of time where the interests of justice so require, without preventing exercise of a statutory power of sale.

Court orders

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  1. 1.Order of stay of execution of the judgment and decree of the High Court pending determination of the application for leave to file an appeal out of time
  2. 2.Costs in the intended appeal
On appeal from
High Court of Kenya at Kakamega
H.C.C.C. No. 65 of 1993
Jurisdiction invoked
Inherent appellate jurisdiction to grant stay of execution pending intended appeal (application for leave to file appeal out of time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Richard Akwesera Onditi v Kenya Commercial Finance Co. Ltd", Case Analysis (2006). Civil Application No. NAI. 10 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/298/eng@2006-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.